Friday, January 4, 2013

The Lawless, and Ultimately Pointless, Views of Professor Seidman

The twitterverse is abuzz today about Louis Michael Seidman’s New York Times op-ed, “Let’s Give Up on the Constitution,” in which the Georgetown law professor flacks his forthcoming book, On Constitutional Disobedience. I wrote about Seidman and his views a few weeks ago, when the Chronicle of Higher Education ran an interview with him. It was possible that the Chronicle’s writer made Seidman’s arguments come out marginally more incoherent than they really are. But with today’s Times op-ed, which presumably contains the choicest and most powerful points made in the book he is eager to have us read, we have confirmation: This is a stupendously bad argument, almost too idiotic to be understood as seriously intended. (I keep the “almost” because Seidman is a law professor, after all.)

Seidman is frustrated with features of our government, and blames his frustration on the Constitution. Okay. His solution, though, is to urge us to “disobey” the Constitution. But as I noted weeks ago, he does not want us to disobey the entire Constitution–only the parts of it that he doesn’t like. We should obey the parts of the Constitution that we “respect,” and not consider the whole of it as carrying any “obligation.” But which parts of it should we respect? What if I respect certain parts, and Seidman respects different parts? Shall we have a test of strength to see which of us prevails at the polls? Come to think of it, who needs elections? Perhaps the supporters of Mitt Romney might decide they don’t respect the part of the Constitution that resulted in the reelection of President Obama. Professor Seidman’s argument, on its own terms, is quite incapable of answering anyone who acted lawlessly on such a basis. In fact, as I argued weeks ago, his entire argument is an assault on all law, and on the rule of law itself.
Thanks to Seidman’s muddled thinking, it is not even clear what “disobeying” would look like. In a failure of nerve, he concludes his essay by mumbling something about how we should all “make a good-faith effort to understand the views of others.” The conclusion is well-nigh inescapable that Seidman himself has been arguing in bad faith. All this épater la bourgeoisie rhetoric was trotted out to soften up his readers, persuading them to consider relaxing the strictures of the Constitution in ways that suit his purposes. The “living Constitution” school of thought (which Professor Seidman notes in passing without mentioning his own membership therein) began similarly, with the Progressives’ depreciation of the founders and their Constitution, and their clever turn toward “reinterpreting” the Constitution rather than “disobeying” it–which is to say, their turn toward disobeying it while paying lip service to it. This at least had the merit, to borrow from La Rochefoucauld, of being that hypocrisy in which vice pays tribute to virtue.
For someone who has taught constitutional law for 40 years, Seidman employs some terribly potted history, too. Most of his examples of our “long history of disobedience” have to do with people disagreeing over what the Constitution means (even if some of them are hypocrites–see above), and how best to fulfill our obligations to it. But while it is true that our constitutional disagreements regularly feature accusations of “disobedience”–and every overturning of a statute by judicial review entails a finding that the Constitution has been disobeyed–Seidman’s “long history of disobedience” adduces not a single example in which the actors involved thought and said that “disobeying the Constitution” was a good thing.
Seidman’s best example is his first one, and it won’t serve, either. Here it is:

In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

This argument for the Constitution’s “unconstitutionality,” not surprisingly, was made at the time. And James Madison, in Federalist No. 40, torpedoed the argument with ease. Readers may consult what I wrote on that essay nearly six years ago in my “Perennial Publius” series here at Bench Memos, but the gist of Madison’s argument was that at bottom the Constitution was a revolutionary displacement of the Articles of Confederation in accordance with a higher principle, not a mere “disobedience” of the Articles.
Compared to the true revolutionaries of our founding, Professor Seidman is a weak sister. If he really thought our Constitution was beyond redemption, he could say so, and follow the revolutionary argument to its real conclusion. What’s really going on here is the final collapse into utter intellectual bankruptcy of the “living Constitution” approach to our fundamental law. Thanks to the pioneering work of the late Robert Bork and other early originalists, and the many who have followed in their path, “living constitutionalism” has been utterly discredited. The result is that the adherents to the latter school have largely fragmented into two groups, those who claim that they too are “originalists” after all (while changing really nothing about their views) and those who have decided simply to attack the Constitution. Neither group, when all is said and done, really has much to say that is of any use.